Pitts v. Superior Court

*522 OPINION CLABORNE, Judge. This case began when a fifteen-year-old Flagstaff girl told police that when she was in the fifth grade, she had been fondled by Petitioner, a teacher with whom she became acquainted through choir and music camp. As the investigation progressed, the allegations expanded into a description of numerous sexual contacts occurring over a period of six years beginning in September 1985. During the course of the investigation, the police learned that Petitioner had left the Mesa Public School System in 1977 because of allegations of an inappropriate relationship with a student. The case relating to the Flagstaff girl was presented to the grand jury, which, in addition to evidence regarding the focus of the investigation, heard extensive testimony about the relationship between Petitioner and the Mesa student, including evidence of kissing, fondling, and oral and vaginal intercourse. The grand jury returned a multi-count indictment for child molestation, sexual abuse, and sexual conduct with a minor, all related to Petitioner’s alleged conduct with the Flagstaff girl. Petitioner moved to dismiss or to remand for a new determination of probable cause on the grounds that the introduction of evidence of prior bad acts violated his right to due process of law. The trial court denied the motion and Petitioner brought this special action, seeking to reverse that ruling. We remand with directions to grant the motion for a new finding of probable cause. We hold that the introduction of evidence of prior sexual misconduct, without expert testimony establishing that the prior conduct demonstrates an emotional propensity to commit the alleged acts which are the subject of the grand jury’s investigation, deprived Petitioner of due process of law. In State v. Emery, 131 Ariz. 493, 506 , 642 P.2d 838, 851 (1982), our supreme court said: If a state resorts to the grand jury procedure, the due process and equal protection clause of the fourteenth amendment require utilization of an unbiased grand jury and the presentation of evidence in a fair and impartial manner. See also; Crimmins v. Superior Court, 137 Ariz. 39, 41 , 668 P.2d 882, 884 (1983). There are no Arizona cases directly on point. 1 However, in State v. Treadaway, 116 Ariz. 163 , 568 P.2d 1061 (1977), the supreme court held that evidence of remote prior sexual misconduct was not admissible at trial to prove that the defendant was guilty of other acts of sexual misconduct unless there was expert testimony to prove that the prior misconduct demonstrated a propensity to commit the acts for which the defendant was on trial. The supreme court said: [t]he admissibility of the prior act depends initially upon its relevancy, which involves complicated questions of sexual deviancy in a sophisticated area of medical and scientific knowledge. [We are] not prepared to resolve such questions in the absence of such expert knowledge. Treadaway, 116 Ariz. at 167 , 568 P.2d at 1065 . Thus, in the absence of the qualifying expert testimony, evidence of prior sexual misconduct is irrelevant as a matter of law. Such evidence is, of course, highly prejudicial. Under the narrow circumstances of this case, the introduction of the evidence deprived Petitioner of due process of law. We readily acknowledge that the rules of evidence do not apply in grand jury proceedings. State ex rel. Berger v. Myers, 108 Ariz. 248, 250 , 495 P.2d 844, 846 (1972); Ariz.R.Evid. 1101(b) (1988). This, however, is not a case of weighing rele- *523 vanee against prejudicial effect. Given Treadaway , there is no relevance to put in the balance. It would be otherwise if the State had produced any expert evidence, either by direct testimony or by hearsay, to establish an emotional propensity on the part of Petitioner to commit the acts the grand jury was investigating. We do not hold that any or all the safeguards that exist at trial with regard to evidence of prior bad acts should be available in grand jury proceedings. It would be undesirable and unprecedented, for example, for a judge to conduct a hearing to weigh relevance against prejudice before a grand jury could consider evidence. See Marston’s Inc. v. Strand, 114 Ariz. 260, 265 , 560 P.2d 778, 783 (1977). Nor do we hold that all evidence of prior bad acts of any type must be excluded from the grand jury’s consideration. That question is not before us. All we hold is that the admission of highly prejudicial evidence which is irrelevant as a matter of law denied Petitioner due process of law. It is ordered reaffirming the acceptance of jurisdiction of this special action, granting relief, and remanding this case to the trial court with directions to grant a new finding of probable cause. KLEINSCHMIDT, C.J., concurs. . One Arizona case, State ex rel. Collins v. Superior Court, 161 Ariz. 392 , 778 P.2d 1288 (App.1989), infers that it is undesirable to introduce evidence of prior convictions in a grand jury proceeding. Two cases from other jurisdictions condemn the use of any prior bad act testimony before the grand jury. See United States v. Hogan, 712 F.2d 757 (2d Cir.1983), and People v. Lobianco, 126 Misc.2d 519 , 483 N.Y.S.2d 145 (1984).